Catholic University Law Review

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1 Catholic University Law Review Volume 35 Issue 4 Summer 1986 Article Clarifying the Work Preservation/Work Acquisition Dichotomy Under Sections 8(b)(4)(B) and 8(e) of the National Labor Relations Act: National Labor Relations Board v. International Longshoremen's Association Nancy M. Rappa Follow this and additional works at: Recommended Citation Nancy M. Rappa, Clarifying the Work Preservation/Work Acquisition Dichotomy Under Sections 8(b)(4)(B) and 8(e) of the National Labor Relations Act: National Labor Relations Board v. International Longshoremen's Association, 35 Cath. U. L. Rev (1986). Available at: This Notes is brought to you for free and open access by CUA Law Scholarship Repository. It has been accepted for inclusion in Catholic University Law Review by an authorized administrator of CUA Law Scholarship Repository. For more information, please contact edinger@law.edu.

2 CLARIFYING THE WORK PRESERVATION/ WORK ACQUISITION DICHOTOMY UNDER SECTIONS 8(b)(4)(B) AND 8(e) OF THE NATIONAL LABOR RELATIONS ACT: NATIONAL LABOR RELATIONS BOARD v. INTERNATIONAL LONGSHOREMEN'S ASSOCIA TION The National Labor Relations Act (NLRA or Wagner Act),' one of the first major federal laws governing the collective bargaining process between unions and unionized employers, is designed to promote industrial stability. 2 I. Pub. L. No. 198, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C (1982)) [hereinafter referred to as Wagner Act or NLRA]. 2. Section 151 of the Act, in setting forth the statement of policy, declares that [t]he denial by [some] employers of the right of employees to organize and the refusal by [some] employers to accept the procedure of collective bargaining lead to strikes and other forms of industrial strife or unrest, which have the intent... of burdening or obstructing commerce by... (d) causing diminution of employment and wages in such volume as substantially to impair or disrupt the market for goods flowing from or into the channels of commerce. 29 U.S.C. 151 (1982) (bracketed segments added to the Act by Taft-Hartley amendments of 1947). See also W. OBERER, K. HANSLOWE & J. ANDERSON, CASES AND MATERIALS ON LABOR LAW, COLLECTIVE BARGAINING IN A FREE SOCIETY 110 (2d ed. 1979). The authors state that the Wagner Act was the "offspring of the economic collapse which followed the crash of 1929." Furthermore, the National Industrial Recovery Act of 1933, enacted as part of the "New Deal" legislation to tackle the economic collapse, and invalidated in Schechter Poultry Co. v. United States, 295 U.S. 495 (1935), was the forerunner of the Wagner Act in that its administrative board promulgated decisions and established principles that "anticipated basic features" of the NLRA. Id. The Wagner Act contained two primary purposes: (1) it was designed to be the "constitutional hook" of a design to resolve labor disputes that inevitably interrupt the flow of commerce; and (2) it allegedly would enhance the purchasing power of workers collaterally through their increased bargaining power and thus, would deal with the effects of the Depression. Id. See also Madden, Origin and Early Years of the National Labor Relations Act, 18 HASTINGS L.J. 571 (1967). Professor Madden, who was appointed by Secretary of Labor Frances Perkins to the newly-organized National Labor Relations Board (NLRB) in 1935, said, in referring to Senator Wagner, that "[tihe Senator's hope was that his law would make American working men free... that it would, in time, make them and their country affluent, by creating a great mass purchasing power for the products of American industry. He was right on both counts." Id. at 573. See generally H. WELLINGTON, LABOR AND THE LEGAL PROCESS (1968). Contra Keyserling, The Wagner Act: Its Origin and Current Significance, 29 GEO. WASH. L. REV. 199, (1961). Keyserling was Senator Wagner's administrative assistant who worked with him on the project. He stated in his article that organized industry and the press 1061

3 1062 Catholic University Law Review [Vol. 35:1061 The declared policy of the NLRA is to eliminate substantial obstructions to the free flow of commerce "by encouraging the practice and procedure of collective bargaining." ' Subsequently, the framers of the Labor Management Relations Act (LMRA) recognized that certain union practices also tended to obstruct commerce, and amended the NLRA to prohibit certain union unfair labor practices. 4 One type of unfair labor practice engaged in by unions is the secondary boycott, in which a union exerts economic pressure against an employer who deals with the union's employer but is not a direct party to the labor dispute. 5 As opposed to primary activity, where a union attempts to exert pressure against an employer with which it has a labor dispute, 6 secondary boycotts are attempts by a union to influence a third-party neutral, not directly involved in the controversy, 7 with the "objective of forcing the third party to bring pressure on the employer to agree to the union's demands." ' The two principal factors determining whether primary or secondary activity is present are whether the employer against whom the union is exerting pressure is a truly neutral party, and whether the union is attempting to affect its relations with its employer or is instead attempting to achieve were vehemently opposed to the legislation, and that it was even condemned by Walter Lippman who stated that, even if the bill passed, it would not work because "[i]t is preposterous to put such a burden on mortal men." Id. (citing Lippmann, The Wagner Labor Bill, N.Y. Herald Tribune, Mar. 28, 1935, at 21, col. 1). 3. Pub. L. No. 198, 49 Stat. 449 (1935) (codified as amended at 29 U.S.C. 151 (1982)). 4. Labor-Management Relations (Taft-Hartley) Act 151, 29 U.S.C. 141 (1947). See generally S. REP. No. 105, 80th Cong., 1st Sess. 7-8, 22-23, reprinted in I NLRB LEGISLA- TIVE HISTORY OF THE LABOR-MANAGEMENT RELATIONS ACT OF 1947, at , (1947) [hereinafter cited as I LMRA LEGISLATIVE HISTORY, 1947]. The Senate Report recounts public hearings given in which testimony was given relating to union activity that had "unduly impinged upon the rights of individual employees, employers, and the public." Id. at 7, 1 LMRA LEGISLATIVE HISTORY, 1947, at 413. The testimony revealed that "proposals designed to define and correct" many unfair union practices, such as secondary boycotts, had been presented to the committee. Id. 5. A secondary boycott is a "boycott of one who is not a direct party to the principal dispute and as a combination to influence a principal by exerting some sort of economic or social pressure against persons who deal with the principal." S. REP. No. 1139, 86th Cong., 2d Sess. 2 (1960). The report also states that certain judicial determinations revealed the secondary boycott as being "in the nature of conspiracies in restraint of trade," and several states had outlawed the activity. Id. 6. NLRB v. Local 825, Operating Eng'rs, 400 U.S. 297 (1971). See also F. BARTOSIC & R. HARTLEY, LABOR RELATIONS LAW IN THE PRIVATE SECTOR 126 (1977). 7. Goetz, Secondary Boycotts and the LMRA: A Path Through the Swamp, 19 KAN. L. REV. 651, 653 (1971). 8. Local 825, 400 U.S. at 303. See H.R. No. 510, 80th Cong., 1st Sess. 43, reprinted in I LRMA LEGISLATIVE HISTORY, 1947, supra note 4, at 547.

4 1986] Work Preservation/Work Acquisition Dichotomy 1063 "union objectives elsewhere." 9 Despite the purpose and spirit enunciated in the Wagner Act, it failed to prohibit the proliferation of secondary union activity. ' Through enactment of the Taft-Hartley amendments of 1947 and the Landrum-Griffin amendments of 1959, section 8(b)(4)(B) of the Act (NLRA) now imposes restrictions on secondary boycott activity by labor unions. " In addition, section 8(e) 12 prohibits "hot cargo" agreements whereby a union and an employer 9. F. BARTOSIC & R. HARTLEY, supra note 6, at 126. See also Lesnick, The Gravamen of the Secondary Boycott, 62 COLUM. L. REV (1962). 10. See R. DERESHINSKY, THE NLRB AND SECONDARY BoYcoTrs 3, 4 (1972). Because of an intrinsic "Catch-22" effectuated by the conflicting policies of the Wagner Act and the Norris LaGuardia Act, 47 Stat. 70 (1932), 29 U.S.C (1970), (which was not repealed by Congress), unions were removed from antitrust proscriptions and at the same time, the injunction was limited as a tool in curbing secondary boycotts. R. DERESHINSKY, supra at 2. Consequently, an employer could neither legally accede to union demands nor look to the courts for injunctive relief. Id. at 3. "Strong unions were able to utilize the boycott as a means of exerting pressure in order to gain recognition or to gain economic benefits for their members." Id. Dereshinsky states that the laissezfaire philosophy perpetuated by the passage of Norris LaGuardia defined "labor dispute" broadly, and "Congress insured labor's right to engage in sympathy strikes, secondary boycotts... and other activities," a policy that was not eradicated, but rather accommodated, by the passage of the Wagner Act. Id. at Section 8(b)(4)(B), as amended in 1959, states in relevant portion: It shall be an unfair labor practice for a labor organization or its agents- (4)(ii) to threaten, coerce, or restrain any person engaged in commerce or in an industry affecting commerce, where in either case an object thereof is- (B) forcing or requiring any person to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person... Provided, [T]hat nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing. 61 Stat. 141, as amended, 73 Stat. 542, 29 U.S.C. 158(b)(4)(B). When Congress passed the LMRA in 1947 (Taft-Hartley), restrictions on secondary boycotts were incorporated into the Act. The language of 8(b)(4)(B), enacted in 1947 and amended in 1959, was the successor clause of 8(b)(4)(A). See infra note 48 and accompanying text. Professors Bartosic and Hartley succinctly summarize the essence of the secondary boycott proscriptions encompassed in 8(b)(4)(B): The words secondary boycott appear nowhere in the statute. Instead Section 8(b)(4)(B) proscribes specific unlawful means and objectives. To violate the section, a union must be found to have used an unlawful means to accomplish an unlawful object. The proscribed means, set forth in the introductory clause to Section 8(b)(4), are essentially strikes, refusals to handle goods or perform services, or inducement or encouragement of these activities, as well as restraint of any person. The forbidden object, set forth in Subsection B, essentially proscribes forcing or requiring any person to cease using or handling the products of another producer or to cease doing business with any other person. A proviso to Section 8(b)(4)(B) states '[t]hat nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing.' F. BARTOSIC & R. HARTLEY, supra note 6, at Section 8(e), enacted in 1959, provides that: It shall be an unfair labor practice for any labor organization and any employer to

5 1064 Catholic University Law Review [Vol. 35:1061 agree that the union will not be required to handle goods manufactured or transferred by another employer with which the union has a dispute or whom the union considers to be unfair to organized labor. 1 3 The distinction between primary and secondary activity has become critical in the consideration of collectively-bargained contract provisions known as "work preservation clauses." 4 When the object of such an agreement is to benefit members of the bargaining unit, 15 or to maintain work that traditionally has been performed by bargaining unit employees, 16 courts consider negotiation and enforcement of work preservation clauses to be primary activity falling outside the scope of sections 8(b)(4)(B) and 8(e) proscriptions. ' 7 By contrast, if the agreement tends to secure for the bargaining unit any work that has never been performed by the union workers,' 8 or tends to benefit union members in a general sense,' it constitutes what is termed enter into any contract or agreement, express or implied, whereby such employer ceases or refrains or agrees to cease or refrain from handling, using, selling, transporting or otherwise dealing in any of the products of any other employer, or to cease doing business with any other person, any contract or agreement entered into heretofore or hereafter containing such an agreement shall be to such extent unenforcible and void. Pub. L. No , 73 Stat. 543 (1959) (codified as amended at 29 U.S.C. 158(e) (1982)). 13. A "hot cargo" clause is one which "requires an employer, a neutral party, to refrain from handling products of another or to cease doing business with another person with whom the union has a dispute." Western Washington Cement Masons Health & Sec. Trust Funds v. Hillis Homes, Inc., 26 Wash. App. 224, , 612 P.2d 436, 440 (1980). The McClellan Report stated that "[e]ssentially the 'hot cargo' clause is an agreement between a union and a unionized employer that his employees shall not be required to work on or handle 'hot goods' or 'hot cargo' being manufactured or transferred by another employer with whom the union has a labor dispute or whom the union considers and labels as being unfair to organized labor." S. REP. No. 1139, supra note 5, at 3 (1960). See also F. BARTOSIC & R. HARTLEY, supra note 6, at 138. Hot cargo clauses, also called "hot goods" clauses, were often generated as a result of the collective bargaining process, and negotiation of these agreements maximized union economic pressure. Id. 14. See A. Duie Pyle, Inc. v. NLRB, 383 F.2d 772, (3d Cir. 1967); see infra note 96 and accompanying text. 15. See A. Duie Pyle, 383 F.2d at American Boiler Mfrs. Ass'n v. NLRB, 404 F.2d 547 (8th Cir.), cert. denied, 398 U.S. 960 (1968) (union conduct not violative where collective bargaining agreement seeks to preserve "traditional work," and such work extenuates to that "which unit employees have performed and are still performing at the time they negotiated a work preservation clause"). Id. at 552. In American Boiler Mfrs. Ass'n, the court did not rule on "whether... [a work preservation clause] can be enforced if the objective is to acquire work which unit employees had never performed... " Id. 17. See infra note 102 and accompanying text. 18. See, e.g., Sheet Metal Workers, Local 216 (Associated Pipe & Fitting Mfrs.), 172 N.L.R.B. 35 (1968) (restriction on purchase of prefabricated materials from manufacturers who did not pay prevailing wage rate illegal). 19. See Meat & Highway Drivers v. NLRB, 335 F.2d 709, 716 (D.C. Cir. 1964); Orange

6 1986] Work Preservation/Work Acquisition Dichotomy 1065 "work acquisition," 2 and falls within the secondary boycott proscriptions of the LMRA. The distinction between lawful work preservation agreements and unlawful work acquisition agreements has been examined in several recent United States Supreme Court decisions. 2 " At issue have been collectively-bargained rules that reserve to longshoremen particular loading and unloading of containers that is done within a fifty-mile radius of the port. 2 2 The Supreme Court first addressed the propriety of these agreements in International Longshoremen's Association v. National Labor Relations Board (ILA-V. 23 It held that a lawful work preservation agreement requires two elements: first, the agreement must be designed to preserve work for union members of the bargaining unit, rather than to achieve some secondary goal; and second, the employer must be in a position to allocate the work covered by the agreement. 2 4 In ILA-I, the Court held that the Board had erroneously defined the work in dispute, and it remanded the case to the NLRB with instructions that it reevaluate the rules. 25 It was not until National Labor Relations Board v. International Longshoremen's Association (ILA-II) 26 that the Supreme Court finally put to rest the ambiguity of the work preservation/work acquisition dichotomy by approving the two-step analysis formulated in ILA-I. Affirming the United States Court of Appeals for the Fourth Circuit, the Supreme Court reviewed the criteria for work preservation and overruled the NLRB's decision that the rules on containers were unlawful work acquisition in violation of sections 8(b)(4)(B) and 8(e). 2 7 On remand from ILA-I, the Board held that the rules constituted an unfair labor practice under the Act because of their ef- Belt Dist. Council of Painters v. NLRB, 328 F.2d 534 (D.C. Cir. 1964); Truck Drivers Union, Local No. 413 v. NLRB, 334 F.2d 539, 548 (D.C. Cir. 1964). 20. See infra note 100 and accompanying text. The Board has continued to place primary reliance "on the determination that the work in question has never been performed by the employees." Note, Work Preservation and the Secondary Boycott.- An Examination of the Decisional Law Since National Woodwork, 21 SYRACUSE L. REV. 907 (1970). 21. National Woodwork Mfrs. Ass'n v. NLRB, 386 U.S. 612 (1967). This case "established the work preservation doctrine as the main criterion for determining the legality or illegality of activity under 8(e)." R. DERESHINSKY, supra note 10, at 113. See infra notes 23, 26, , 166, , and accompanying text. 22. See Intercontinental Container v. New York Shipping Ass'n (NYSA), 426 F.2d 884 (2d Cir. 1970). This was the first case to litigate the Rules on Containers. See infra note and accompanying text. Cargo loading and unloading is referred to as "stuffing and stripping" in the longshore industry. See infra note 160 and accompanying text U.S. 490 (1980). 24. Id. at Id. at S. Ct (1985). 27. Id.

7 1066 Catholic University Law Review [Vol. 35:1061 fect on shortstopping truckers 28 and traditional warehousers, 29 and determined that they were illegal work acquisition because they sought to reacquire longshore work that had been eliminated by intermodal containerization. 30 The Supreme Court held that Congress intended sections 8(b)(4)(B) and 8(e) to reach only secondary activity, 3 and it determined that the NLRB had erred in viewing the extra-unit effect on the shortstoppers as a dispositive indication of unlawful secondary objectives. 32 In addition, the Court stated that the NLRB erred in holding that work that has been eliminated is never a proper object of work preservation agreements. 33 Justice Rehnquist, joined in dissent by two other members of the Court, 4 maintained that the rules violated the plain language of sections 8(b)(4)(B) and 8(e). 35 He chastised the majority for failing to recognize that the rules were an attempt by the union to "extend its influence beyond the unit employer and the traditional bargaining issues" to appropriate or retain jobs through impermissible means. 36 The dissent asserted that because the rules permitted longshore labor to obtain work that it had not traditionally performed, the "intent and effect" directly contravened lawful work preservation principles. Finally, the dissent maintained that the majority had placed undue emphasis on the work in dispute. Thus, by "refusing to allow a review of the larger economic scene," he contended that the Court managed to focus solely on the narrow issue of work preservation. 37 This Note will suggest that the Supreme Court's decision in ILA-II properly reinforced the principles applicable to work preservation agreements set forth by earlier case law. To this end, the Note will examine the enactment of sections 8(b)(4)(B) and 8(e). It will evaluate judicial determinations in the work preservation/work acquisition sphere, and the application of these 28. Id. at See infra note 186 and accompanying text S. Ct. at See infra note 187 and accompanying text S. Ct. at The United States Court of Appeals for the Fourth Circuit reversed the NLRB, stating that the "Board had failed to make any factual finding that the Rules actually operate to deprive [parties] of any work," and that an agreement that preserves duplicative work or work that has been technologically "eliminated" per se does not necessarily become "work acquisition." Id. See infra note 207 and accompanying text S. Ct. at Id. at Id. 34. Id. at 3059 (Rehnquist, J., dissenting). 35. Id. at Id. at Justice Rehnquist asserted that the very conduct the union was engaging in was the "secondary activity" with which Congress was concerned. Id. 37. Id. at Justice Rehnquist contended that the Court "hides the ILA's work acquisition under one shell and then forces all attention on the limited question of the union's intent in bargaining with its employer." Id.

8 1986] Work Preservation/Work Acquisition Dichotomy 1067 principles to collectively-bargained Rules on Containers as lawful work preservation agreements. Finally, the Note will conclude that the Court in ILA- II reinforced a tenable formula for work preservation that comports with established principles of national labor law and industrial stability. I. SECONDARY BOYCOTT AND HOT CARGO PROVISIONS: DELINEATING THE PRIMARY-SECONDARY Focus A. Overview of Secondary Boycott Provisions: Tackling the Chameleon Historically, "primary activity," through which a union exerts pressure against an employer with which the union is in dispute (the "primary employer") has been viewed as legitimate union conduct. 38 Thus, labor legislation frequently has attempted to insure that particular union weapons, such as strikes, boycotts, and picketing, would be used only against primary employers. 39 When the union activity attempts to induce nondealing with another employer (the "secondary employer") by economic threats, however, the activity "goes beyond the bounds of fair persuasion" and is impermissible secondary conduct." At common law, courts tended to condemn as secondary any pressure that targeted a neutral secondary employer for the purpose of forcing that employer to cease dealing with the primary employer. 4 ' Although the distinction between primary and secondary activity has been described as not "glaringly bright" and "more nice than obvious," '42 it is an attempt to recognize both a labor union's right to pressure its employer in a primary dispute, and also, to protect a truly neutral party from opprobrious 38. R. SMITH, L. MERRIFIELD, T. ST. ANTOINE & C. CRAVER, LABOR RELATIONS LAW, CASES AND MATERIALS 365 (1984) [hereinafter cited as R. SMITH]. 39. Local 825, 400 U.S. at R. SMITH, supra note 38, at 365. See also Local 761, Int'l Union of Elec., Radio & Mach. Workers v. NLRB, 366 U.S. 667, 672 (1961). 41. R. SMITH, supra note 38, at Local 761, 366 U.S. at (picketing at gate of neutral subcontractor found unlawful where union's objective was to involve neutral employees in the dispute). Id. at The test outlined by the court in determining specific objectives that were illegal under 8(b)(4)(B) was that "[e]mployees must be induced; they must be induced to engage in a strike or concerted refusal; an object must be to force or require their employer or another person to cease doing business with a third person." Id. at 673. Judge Learned Hand, in International Bhd. of Elec. Workers, Local 501 v. NLRB, 181 F.2d 34, 37 (2d Cir. 1950) stated that "[lt]he gravemen [sic] of a secondary boycott is that its sanctions bear, not upon the employer who alone is a party to the dispute, but upon some third party who has no concern in it. Its aim is to compel him to stop business with the employer in the hope that this will induce the employer to give in to his employees' demands." Id.

9 1068 Catholic University Law Review [Vol. 35:1061 behavior in disputes not their own. 43 The concept of the secondary boycott is ambiguous and confusing, but it has been described as "a combination to influence A by exerting some sort of economic or social pressure against persons who deal with A." ' This pressure must be calculated to "[force] the third party to bring pressure on the employer to agree to the union's demands.", 45 The use of secondary boycotts by unions became a target of congressional action. 46 Sections 8(b)(4)(B) and 8(e) of the Act had their genesis in early judicial application of the Sherman Antitrust Act, which courts invoked liberally to enjoin unions' coercive pressure. 47 Concluding that extensive abuses proliferated during the Norris-LaGuardia era, a majority in Congress subsequently enacted the Taft-Hartley proscriptions against union secondary activity encompassed in section 8(b)(4)(A) of the Act. 48 Proponents of the 43. F. BARTOSIC & R. HARTLEY, supra note 6, at See also Local 825, 400 U.S. at St. Antoine, Secondary Boycotts and Hot Cargo: A Study in Balance of Power, 40 U. DET. L.J. 189 (1962) (quoting F. FRANKFURTER & N. GREENE, THE LABOR INJUNCTION 43 (1930)). 45. Local 825, 400 U.S. at See supra notes 4-5 and accompanying text. 47. The Sherman Act, ch. 647, 26 Stat. 209 (1890) (codified at 15 U.S.C. 1-7 (1982)). Although applications of antitrust legislation to secondary boycott are outside the scope of this Note, they did play a role in the ultimate shaping and evolution of the secondary boycott proscriptions as they appear in modern form. For informative background material, see Duplex Printing Press Co. v. Deering, 254 U.S. 443, 445 (1921) ( 6 of the Clayton Act contains "nothing... to exempt [a union] or its members from accountability [when]... they depart from its normal and legitimate objects and engage in an actual combination or conspiracy in restraint of trade."); Allen Bradley Co. v. Local Union No. 3, 325 U.S. 797, (1945) (history of federal court injunctions against various forms of labor collective activity as unlawful restraints of trade under the Sherman Antitrust Act). A Supreme Court decision in 1941 terminated application of the antitrust law to union secondary activity. See United States v. Hutcheson, 312 U.S. 219 (1941); see also F. BARTOSIC & R. HARTLEY, supra note 6, at This section provides, in relevant part: (b) It shall be an unfair labor practice for a labor organization or its agents- (4)(i) to engage in, or to induce or encourage [the employees of any employer] to engage, in a strike or a [concerted] refusal in the course of [their] employment to use, manufacture, process, transport, or otherwise handle or work on any goods, articles, materials, or commodities or to perform any services.., where an object thereof is- (A) forcing or requiring any employer... [to cease using, selling, handling, transporting, or otherwise dealing in the products of any other producer, or manufacturer, or to cease doing business with any other person] U.S.C. 158(b)(4)(i)(A) (1982) (emphasis added; bracketed portions eliminated in 1959 amendments). See also S. REP. No. 105, supra note 4, at 22, 1 LMRA LEGISLATIVE HISTORY, 1947, supra note 4, at 428. In setting out the proscriptions of the Taft-Hartley amendments, the report states that strikes or boycotts, or attempts to induce or encourage such action, are made viola-

10 1986] Work Preservation! Work Acquisition Dichotomy 1069 amendments, including the bill's sponsor, specifically indicated that the legislation was aimed only at secondary pressures, and that primary activity remained permissible. 49 B. Application of the Secondary Boycott Provisions to Union Contract Clauses The NLRB and the courts have consistently and uniformly invoked these provisions only against secondary union conduct. 50 The Supreme Court has reinforced this narrow interpretation by refusing to prohibit primary strikes and picketing notwithstanding a collateral impact on neutral employers. 5 " tions of the Act if the purpose is to force an employer or other person to cease using, selling, handling, transporting... or to cease doing business with any other person. Thus, it would not be lawful for a union to engage in a strike against employer A for the purpose of forcing that employer to cease doing business with employer B; nor would it be lawful for a union to boycott employer A because employer A uses or otherwise deals in the goods of or does business with employer B (with whom the union has a dispute). Id. In enacting 8(b)(4)(A), Congress aimed to restrict the area of industrial conflict insofar as this could be achieved by prohibiting the most obvious, widespread... dangerous practice of unions to widen that conflict: the coercion of neutral employers, themselves not concerned with a primary labor dispute, through the inducement of their employees to engage in strikes or concerted refusals to handle goods. Local 1976, United Bhd. of Carpenters & Joiners v. NLRB (Sand Door), 357 U.S. 93, 100 (1958). See generally Lesnick, supra note See National Woodwork, 386 U.S. at 623, 624. The Court observed that "[c]ommentators of the post Norris-LaGuardia era... while continuing to deplore the chameleonlike qualities of the term 'secondary boycott,' agreed upon its central aspect: pressure tactically directed toward a neutral employer in a labor dispute not his own." Id. at 623. See also 1 C. TELLER, THE LAW GOVERNING LABOR DISPUTES AND COLLECTIVE BARGAINING 145 (1940); S. REP. No. 105, supra note 4, reprinted in I LMRA LEGISLATIVE HISTORY, 1947, supra note 4, at 407; H.R. REP. No. 510, at 43, reprinted in I LMRA LEGISLATIVE HISTORY, 1947, supra note 4, at See Lesnick, supra note 9, at Local 825, 400 U.S. at 303. See also Local 761, 366 U.S. at The limitation to secondary situations was in conformity with the " 'dual congressional objectives of preserving the right of labor organizations to bring pressure to bear on offending employers in primary labor disputes and of shielding unoffending employers and others from pressures in controversies not their own.'" Id. at 679 (quoting NLRB v. Denver Bldg. & Const. Trades Council, 341 U.S. 675, 692 (1951)). See also DiGiorgio Fruit Corp. v. NLRB, 191 F.2d 642 (D.C. Cir.), cert. denied, 342 U.S. 869 (1951); J.G. Roy & Sons Co. v. NLRB, 251 F.2d 771 (1st Cir. 1958); Rabouin v. NLRB, 195 F.2d 906, 912 (2d Cir. 1952); Piezonki v. NLRB, 219 F.2d 879 (4th Cir. 1955); NLRB v. General Drivers, Warehousemen & Helpers, Local 968, 225 F.2d 205 (5th Cir.), cert. denied, 350 U.S. 914 (1955); Local 618, Automotive Petroleum Employees Union v. NLRB, 249 F.2d 332 (8th Cir. 1957); NLRB v. Local Union No. 55, 218 F.2d 226 (10th Cir. 1954). See generally Aaron, The Labor-Management Reporting and Disclosure Act of 1959, 73

11 1070 Catholic University Law Review [Vol. 35:1061 Accordingly, primary activity will not be transformed into prohibited secondary conduct merely because it has a severe impact on neutral employers. 5 2 The Court thus has reinforced that the purpose of section 8(b)(4)(A) was to shelter only truly neutral employers from the reach of union pressure and has recognized that section 8(b)(4)(A) was not subject to literal interpretation.- 3 The Court stated that the provision specifically prohibited "the coercion of neutral employers, themselves not concerned with a primary labor dispute, through the inducement of their employees to engage in strikes or concerted refusals to handle goods." 5 4 Before the enactment of section 8(e) the enforcement of hot cargo clauses 55 was regulated under section 8(b)(4)(A). 5 6 However, both the NLRB and the courts have had difficulty ascertaining the legality of the enforcement of such clauses against secondary parties. 57 Courts addressing hot cargo clauses under section 8(b)(4)(A) permitted contractually-bargained hot cargo agreements to remain outside the reach of the provision. The first case to come before the Board after the enactment of section 8(b)(4)(A), Teamsters Local 294 (Conway's Express), 5 " involved a multiemployer agreement that allowed the union to refuse to handle goods of any employer involved in a labor dispute. The union solicited the assistance of secondary employees to refuse to handle goods in furtherance of a strike called against Conway for an alleged breach of Conway's obligations under another provision of the agreement. 59 The NLRB found that when the secondary employers had consented in advance to the boycott, the employees were merely exercising their contractual rights." The Board stated that section 8(b)(4)(A) did not "prohibit employers from refusing to deal with other persons, whether because they desire to assist a labor organization in the HARV. L. REV. 1086, 1112 (1960); Cox, The Landrum-Griffin Amendments to the National Labor Relations Act, 44 MINN. L. REV. 257, 271 (1959). 52. Cox, supra note 51, at See NLRB v. International Rice Milling Co., 341 U.S. 665 (1951) (fortuitous impact on neutral employees by primary union strikers not within proscriptions of 8(b)(4)(A)). See also F. BARTOSIC & R. HARTLEY, supra note 6, at 124. But see NLRB v. Denver Bldg. & Constr. Trades Council, 341 U.S. 675, (1951). 54. Sand Door, 357 U.S. at See supra notes and accompanying text. 56. R. DERESHINSKY, supra note 10, at Id. at N.L.R.B. 972 (1942), aff'd sub nom. Rabouin v. NLRB, 195 F.2d 906 (2d Cir. 1952). See also Pittsburgh Plate Glass, 105 N.L.R.B. 740 (1953) (refusal to handle freight per bargaining contract between union and employer permissible). 59. Conway's Express, 87 N.L.R.B. at Id. at 982 (nothing in 8(b)(4)(A) precluded voluntary execution of "hot cargo" or "struck work" provisions in the collective bargaining agreement).

12 1986] Work Preservation/Work Acquisition Dichotomy 1071,,61 protection of its working standards, or for any other reason. Consequently, Conway established that a hot cargo clause was not a per se violation of section 8(b)(4)(A) because the section simply did not proscribe any additional means of inducement of employees by the union. 6 2 The case was affirmed by the United States Court of Appeals for the Second Circuit. 63 C. Hot Cargo and Loopholes-The Sand Door Decision In 1958, the Supreme Court's holding in Local 1976, United Brotherhood of Carpenters and Joiners v. NLRB (Sand Door64 effectively overruled Conway's Express. 65 After reviewing the "checkered career" of the NLRB in this arena, 66 the Court rejected the union's argument that an employer who has voluntarily entered into a hot cargo contract should not be protected. The union had contended that the purpose of the statute was to extricate truly neutral parties from involuntary participation in third party labor disputes, but that this reasoning was inapplicable to voluntary employers. 67 The Court noted that the NLRB "has rejected the argument as not comporting with the legislative purpose to be drawn from the statute. "68 It determined that an employer must have an uncoerced choice whether to support secondary objectives, regardless of any private contractual arrangement. 69 Permitting the union to use section 8(b)(4)(A) to justify activity that would in effect be impermissible in the absence of the hot cargo clause, the Court reasoned, would defeat the narrow legislative purpose contemplated by Congress. 7 ' Although the Court stated that while "[a] voluntary employer boycott does not become prohibited activity simply because a hot cargo clause exists,", 71 the existence of the clause will not operate as a defense to an employer's unfair labor practice charge where the union engages in conduct prohibited by section 8(b)(4)(A) Id. (emphasis in original). 62. Id. at (quoted by R. DERESHINSKY, supra note 10, at 98-99). In dissent, Member Reynolds chastised the majority for ignoring reality, stating that to the extent the union contract provisions authorize secondary activity, "they are repugnant to the basic public policies of the Act." He proposed that "contracts which are repugnant to the Act and which conflict with this duty of the Board must obviously yield." R. DERESHINSKY, supra note 10, at 98 (quoting Conway's Express, 87 N.L.R.B. at 995) F.2d 906 (2d Cir. 1952) U.S. 93 (1958) N.L.R.B. at U.S. at Id. at Id. 69. Id. 70. Id. at 100, Id. at Id. at 108.

13 1072 Catholic University Law Review [Vol. 35:1061 D. Response to Excess. The Legislative Intent of Sections 8(b)(4)(B) and 8(e) The language of section 8(b)(4) prompted one writer to state that it is "surely one of the most labyrinthine provisions ever included in a federal labor statute." 73 Although attempting to reduce unfair labor practices in which unions engaged, section 8(b)(4), in its original form as section 8(b)(4)(A), 7 4 allowed unions to achieve unlawful objectives by circumventing the explicit proscriptions of the provision." The Sand Door decision had demonstrated that a loophole existed in the secondary boycott provisions and, as a result, Congress enacted section 8(e) to proscribe the execution of hot cargo clauses. 7 6 Thus, where the NLRB's decision in Conway's Express" held that neither the making nor the enforcement of a hot cargo 73. Aaron, supra note 51, at Section 8(b)(4) prohibited a union from inducing or encouraging "employees of any employer to engage in, a strike or a concerted refusal in the course of their employment." 29 U.S.C. 158(b)(4)(ii) (1959). 75. The provision did not proscribe illegal objectives where inducement of a single employee was concerned "since it involved neither a strike nor a concerted refusal to work." Aaron, supra note 51, at Additionally, if persons whom the union attempted to "induce or encourage" did not qualify as "employees," or worked for an organization exempt from the definition of "employer," the union also could circumvent the provision. Id. Also, pressure exerted on the secondary employer as opposed to employees, was not prohibited. Id. See also H.R. REP. No. 741, 86th Cong., 1st Sess , reprinted in 1 NLRB LEGISLATIVE HISTORY OF THE LABOR-MANAGEMENT REPORTING AND DISCLOSURE ACT OF 1959, at (1959) [hereinafter cited as 1 LMRDA LEGISLATIVE HISTORY, 1959], where the Committee on Education and Labor reported that the inclusion of a hot cargo prohibition in the amendment would "close a loophole in the present law against secondary boycotts." Because the essential elements of 8(b)(4)(A) were the inducement of employees by the union and a strike or concerted refusal to perform services, an inducement of employees by the union alone produced no unfair labor practice. Id. at 21, 1 LMRDA LEGISLATIVE HISTORY, 1959, at 779. The amendment sought to remedy this gap in the legislation. But see Cox, supra note 51, at 257. Professor Cox stated that one of the propositions of the amendments was that "strong independent labor unions are essential institutions in American society." Id. 76. Sand Door, 357 U.S. at 93. For text of 8(e), see supra note 12; see also H.R. REP. No. 1147, 86th Cong., 1st Sess (1959), reprinted in 1 LMRDA LEGISLATIVE HISTORY, 1959, supra note 75, at A typical hot cargo clause in a collective bargaining agreement would read: It shall not be a violation of this Agreement and it shall not be cause for discharge if any employee or employees... refuse to handle unfair goods... The Union and its members, individually and collectively, reserve the right to refuse to handle goods from or to any firm or truck which is engaged or involved in any controversy with this or any other Union; and reserve the right to refuse to accept freight from, or to make pickups from or deliveries to establishments where picket lines, strikes, walkout or lockout exist. Truck Drivers & Helpers, Local 728, 119 N.L.R.B. 399, 400 (1957) N.L.R.B. at 979.

14 1986] Work Preservation! Work Acquisition Dichotomy 1073 clause was illegal, the Supreme Court's decision in Sand Door 78 modified this position by upholding the execution of a contract, but not as a defense to an unfair labor practice. Therefore, with the enactment of section 8(e), Congress sought to eliminate entirely the execution of hot cargo clauses in collective bargaining agreements. 79 The addition of clause (B) to section 8(b)(4) proscribed union activity "forcing or requiring any person to cease using, selling, handling, transporting or otherwise dealing in the products of any other producer, processor, or manufacturer, or to cease doing business with any other person," 80 thereby removing the interstices in the secondary boycott prohibitions. Moreover, in response to the Court's decision in NLRB v. International Rice Milling Co., 81 that construed the word "concerted" to apply to inducement of two or more employees, the word "concerted" was eliminated in the revision. 2 Inclusion of the primary strike proviso in clause (B) preserved a union's right to engage in primary activity. 8 3 While the intent of Congress in enact U.S. 93 (1958). 79. See, e.g., H.R. REP. No. 741, supra note 75, at 20-21, reprinted in 1 LMRDA LEGIS- LATIVE HISTORY, 1959, supra note 75, at ; S. REP. No. 187, 86th Cong., 1st Sess , reprinted in 1 LMRDA LEGISLATIVE HISTORY, 1959, supra note 75, at : "These 'hot cargo' contracts have been the subject of much litigation before the Board... [a] review of these cases leads to the conclusion that... generally speaking [a hot cargo contract] does provide a large loophole in the ban on secondary boycotts." Id. at 80, 1 LMRDA LEGISLA- TIVE HISTORY 1959, supra note 75, at (b)(4)(B), 29 U.S.C. 150(b)(4)(i)(B) (1982). Although 8(b)(4)(B) does not explicitly mention secondary boycotts, the Act "proscribes specific unlawful means and objectives. To violate the section, a union must be found to have used an unlawful means to accomplish an unlawful objective," for instance, strikes or refusals to handle goods, or "inducement or encouragement of these activities." F. BARTOSIC & R. HARTLEY, supra note 6, at An impermissible secondary objective proscribed by the Act would be to force or require "any person to cease using or handling the products of another producer or to cease doing business with any other person." Id. at U.S. 665 (1951). 82. See Cox, supra note 51, at 274. "Section 8(b)(4)(A) of the Taft-Hartley Act forbade only the inducement of 'employees' to engage in a concerted refusal to work 'in the course of their employment.' The amendments make it unlawful 'to threaten, coerce or restrain any person' where an object is to force him to cease doing business with any other person." Id. 83. The proviso reads: "Provided, That nothing contained in this clause (B) shall be construed to make unlawful, where not otherwise unlawful, any primary strike or primary picketing." 29 U.S.C. 158(b)(4)(B) (1982). See H.R. REP. No. 1147, supra note 76, at 38, reprinted in 1 LMRDA LEGISLATIVE HIs- TORY, 1959, supra note 75, at 942, and Senator Kennedy's explanation, 105 CONG. REC. 16, (1959), reprinted in 2 NLRB LEGISLATIVE HISTORY OF THE LABOR-MANAGE- MENT REPORTING AND DISCLOSURE ACT OF 1959, at (1959) [hereinafter referred to as 2 LMRDA LEGISLATIVE HISTORY, 1959]. See also Aaron, supra note 51, at The author states that the net effect of the two provisions would be that, although "picketing at the site of the primary dispute" would not be unlawful even if it results in encouraging employees of a secondary employer to cease handling

15 1074 Catholic University Law Review [Vol. 35:1061 ing section 8(e) and revising section 8(b)(4)(B) was to curtail activity that section 8(b)(4)(A) permitted, 4 this proviso indicated a congressional desire to remove primary activity from the reach of the Act. 85 Thus, "Congress intended merely to reflect the existing law." '8 6 Likewise, the committee reports and debates concerning section 8(e) strongly indicate that Congress intended to close a loophole left by the Sand Door decision, 87 and the final hearings before the Senate Select Committee confirmed that the drafters' objective was to eliminate pervasive secondary conduct by unions. 88 Similarly, the legislative history of section 8(e) confirms that the provision did not expand the conduct forbidden by section 8(b)(4)(A). 89 Thus, section 8(e) progoods, "intentional inducement of even individual employees of a secondary employer, if accomplished away from the site of the primary dispute, will be deemed an unfair labor practice." Id. 84. See 105 CONG. REC. S1567 (daily ed. Feb. 4, 1959) (statement of Sen. Dirksen), reprinted in 2 LMRDA LEGISLATIVE HISTORY, 1959, supra note 83, at 993: The administration's bill would eliminate areas of presently permissible secondary activity which lead to the injury of innocent third parties... No bill which fails to contain provisions in these areas of blackmail picketing and the secondary boycott loopholes can claim to be a truly effective labor reform measure... The testimony before the select committee again and again illustrated the method by which certain unions... utilized the inadequacies of the present secondary boycott provisions to force employers to do business with only those people approved by union officials. Id. 85. H.R. REP. No. 1147, supra note 76, at 38, reprinted in 1 LMRDA LEGISLATIVE HISTORY, 1959, supra note 75, at 942 ("The purpose of this provision is to make it clear that the changes in section 8(b)(4) do not overrule or qualify the present rules of law permitting picketing at the site of a primary labor dispute."). 86. NLRB v. Enterprise Ass'n of Pipefitters, 429 U.S. 507, 526 (1977) ("This provision does not eliminate, restrict, or modify the limitations on picketing at the site of a primary labor dispute that are in existing law.") (quoting H.R. REP. No. 1147, supra note 76, at 38, reprinted in 1 LMRDA LEGISLATIVE HISTORY, 1959, supra note 75, at 942) U.S. 93 (1958). See, e.g., S. REP. No. 187, supra note 79, at (minority views), reprinted in 1 LMRDA LEGISLATIVE HISTORY, 1959, supra note 75, at ; H.R. REP. No. 741, supra note 75, at 20-21, reprinted in I LMRDA LEGISLATIVE HISTORY, 1959, supra note 75, at The Report stated that a review of the decisions before the NLRB, the courts and the Interstate Commerce Commission produced evidence that generally a hot cargo clause provides "a large loophole" in the prohibition on secondary boycotts, notwithstanding where such a clause is no defense to an unfair labor practice. S. REP. No. 187, supra note 79, at 80 (minority views), reprinted in I LMRDA LEGISLATIVE HISTORY, 1959, supra note 75, at 476. The 1959 amendment proposed to make it an unfair labor practice for a union to "coerce an employer to enter into such an agreement, or having entered into it, for a union to coerce the employer to live up to it, or to induce his employees to take economic action to force the employer to live up to it." Id. The Taft-Hartley amendments merely imposed restrictions on the latter. Id. 88. See generally FINAL REPORT OF THE SENATE SELECT COMMITTEE ON IMPROPER ACTIVITIES IN THE LABOR OR MANAGEMENT FIELD, S. REP. No. 1139, supra note See S. REP. No. 187, supra note 79, at 78, reprinted in 1 LMRDA LEGISLATIVE HISTORY, 1959, supra note 75, at 474 (ban of secondary boycotts primarily to protect "genuinely neutral" employers against economic coercion by union in a labor dispute unrelated to

16 1986] Work Preservation/Work Acquisition Dichotomy 1075 hibits agreements with secondary objectives where the enforcement of such agreements would violate section 8(b)(4). 90 Finally, inclusion of the construction and garment industry provisos has been interpreted as "strong confirmation that Congress meant that both sections 8(e) and 8(b)(4)(i)(B) reach only secondary objectives." 91 II. POST-SECTION 8(E) DEVELOPMENT A. The Work Preservation Doctrine: National Woodwork Manufacturers Association v. NLRB In the years following the enactment of section 8(e), hot cargo provisions continued to appear in collective bargaining agreements. Some of these provisions included, for instance, struck work and picket line clauses, 92 and most notably, work allocation clauses. 93 Because of the broad language of section 8(e), the latter classification proved to be the most troublesome, 94 and the subsequent evolution of a broad interpretation of section 8(e) was to have a far-reaching impact on the ultimate construction of all hot cargo clauses. 95 Work preservation clauses are contract clauses negotiated by a union or the neutral employer); see also A. Duie Pyle, 383 F.2d at ; Goetz, supra note 7, at 664 ("sweep of 8(e) no broader than 8(b)(4)(B)"); R. DERESHINSKY, supra note 10, at 114; Lesnick, Job Security and Secondary Boycotts: The Reach of NLRA 8(b)(4) and 8(e), 113 U. PA. L. REV (1965); National Woodwork, 386 U.S. at 635 ("[a]though the language of 8(e) is sweeping, it closely tracks that of 8(b)(4)(A), and just as the latter and its successor 8(b)(4)(B) did not reach employees' activity to pressure their employer to preserve for themselves work traditionally done by them, 8(e) does not prohibit agreements made and maintained for that purpose"). 90. St. Antoine, supra note 44, at 207. The author illustrates the method by which section 8(e) violations are analyzed: When an agreement is brought into question under section 8(e)... the test generally should be whether a union would violate the secondary boycott ban of section 8(b)(4)(B) by inducing employee conduct of the type authorized by the agreement, or by inducing employees to make their employer do what he has committed himself to in the agreement. If the inducement would be a violation of section 8(b)(4)(B), the agreement should be held a violation of section 8(e). But if the agreement does not sanction a secondary boycott it should be sustained. Id. 91. National Woodwork, 386 U.S. at 638. Note the Court's argument concerning the probative value of the garment industry proviso as a justifiable exception. Id. 92. See, e.g., Truck Drivers, Local No. 413, 140 N.L.R.B (1963), enforced in part, 334 F.2d 539 (D.C. Cir. 1964). 93. See Meat & Highway Drivers v. NLRB, 335 F.2d 709 (D.C. Cir. 1964). 94. R. DERESHINSKY, supra note 10, at 109. Compare Orange Belt Dist. Council of Painters No. 48 v. NLRB, 328 F.2d 534 (D.C. Cir. 1964) with Machinists Dist. 9 (Greater St. Louis Automotive Ass'n), 134 N.L.R.B (1961), enforced, 315 F.2d 33 (D.C. Cir. 1962). 95. R. DERESHINSKY, supra note 10, at 113.